The Do-Nothing Defense

Police inaction: SWAT officers take a break during the five-hour rescue operation at Columbine.

photo courtesy of CBS News

For a moment last Friday, U.S. District Judge Lewis Babcock sounded like one of the Brothers Karamazov -- the brooding, metaphysically challenged one.

"If you're confronted with evil, what do you do about it?" he asked the attorneys gathered in his courtroom. "If you do nothing, doesn't that become evil itself?"

Up to that point, doing nothing had been touted as a virtue by the lawyers representing Jefferson County police and school officials in Babcock's court. Confronted with the evil that was Dylan Klebold and Eric Harris, Jeffco authorities did next to nothing right -- but more important, their attorneys argued, they did nothing wrong, legally speaking. And that's what these attorneys wanted Babcock to do with the nine lawsuits filed against their clients by families of those injured or killed in the Columbine massacre: absolutely nothing.

Last week's hearing on motions to dismiss the cases presented a formidable hurdle for the Columbine families. They are seeking to hold the Jefferson County Sheriff's Office and the school district accountable for not doing more to head off the 1999 attack on the high school, in which thirteen people were killed and two dozen more injured. Some plaintiffs contend that the sheriff's office effectively handed over the school -- and their children -- to Harris and Klebold by failing to pursue the gunmen into the building after the rampage started; a daughter of wounded teacher Dave Sanders charges that the inept rescue operation basically left him to die. These claims have drawn renewed media attention in the wake of the 60 Minutes II investigation aired last month, which revealed that authorities had more information about the dangers posed by Harris and Klebold than they'd previously admitted ("Lights, Camera...No Comment," April 12).

But police officers and other government employees enjoy a high degree of protection from liability for violent acts committed by third parties. Under federal law, a cop has no constitutional duty to protect almost anybody from anything. A high school principal has no duty to protect one student from another. A SWAT officer has no obligation to haul a badly wounded gunshot victim to a waiting ambulance.

In its wisdom, the law has carved out two narrow exceptions to the defense of qualified immunity (which, as one jurist put it, "provides ample support to all but the plainly incompetent"). If a "special relationship" exists between the government and the victim -- an inmate in custody, for example, or an institutionalized mental patient who no longer has the ability to defend himself -- then the immunity claim may fail. And if police officers take action and increase the danger to an individual in a manner so reckless that it "shocks the conscience," then even cops are fair game.

According to lawyers for the victims' families, both exceptions apply to the Columbine situation. They argue that the sheriff's office created a "custodial relationship" with the victims in the library and the students trying to help Dave Sanders because 911 operators told them to stay put, that help was on the way. And the sheriff's troops made the situation worse by driving the killers into the school, then forming a perimeter and delaying rescue efforts until long after Klebold and Harris had committed suicide.

"If the police had left and gone home, the tragic irony is that Mr. Sanders would be alive," Peter Grenier, the attorney for Sanders's daughter Angela, told Babcock.

In sheer strength of numbers, the plaintiffs clearly had a tactical advantage over the embattled police and school lawyers. There were so many attorneys at the plaintiff's table that they spilled into the gallery, making it hard to distinguish the high-profile legal talent hired by the families (Grenier, Walter Gerash, Jay Horowitz) from the high-profile legal analysts on hand to provide media bites (Scott Robinson, Craig Silverman, Andrew Cohen).

The plaintiffs had certain rhetorical advantages, too. For the purpose of ruling on the motions to dismiss, procedures require that Babcock regard the factual allegations of the plaintiffs as true. Consequently, their attorneys were able to assert many as-yet-unproven elements of their claims -- that student Dan Rohrbough was killed by a police officer, for example, or that a Denver SWAT team was on the scene and ready to stop the library executions but was ordered not to go in -- as compelling examples of the cops' outlandish behavior. In some instances, this allowed attorneys who seemed to have only a tenuous grasp of the facts of the attack to present mere rumors as evidence of a coverup. But then, the affidavit for a search warrant that a Jeffco investigator prepared for Harris's house in 1998 was just a rumor, too, until a judge forced the county to produce it last month ("Chronology of a Big Fat Lie," April 19).

No one railed at the county's penchant for "concealment" more than aged courtroom warrior Walter Gerash, who wanted Babcock to strip the sheriff's office of its immunity for hiding the affidavit for the past two years. With his voice set on bellow, he demanded to know why the Harris home was never searched, in light of what investigators knew about Eric Harris's bomb-making activities a year before the massacre. "Was Eric Harris an informer? Was he getting special treatment?" he asked. "Something is rotten here."

Gerash has a particular interest in arguing that the botched investigation prior to the attack is conscience-shocking. His clients, Lance Kirklin and Sean Graves, were injured outside the school in the early stages of the attack, a circumstance that makes it more difficult to hold the police somehow responsible for their injuries. Other attorneys, however, had no trouble blasting the police response to Columbine as even more outrageous than their previous inaction.

Phil Gordon called the promise that help was coming, when the first deputies were actually intent on staying outside, "a stunning abuse of governmental power." Miles Cortez described the perimeter tactics adopted by responding deputies as "a decision to stand by and let Harris and Klebold kill or wound for as long as their ammunition held out... The killing field turned out to be the Columbine library."

Defending the sheriff's office, Assistant County Attorney Bill Tuthill coolly shrugged off the rhetoric and focused on case law. Columbine doesn't meet any of the criteria for the exceptions to immunity, he insisted. Whatever the reason that the investigation of Harris's bombs and death threats was aborted, the case was "irrelevant" to what happened a year later, he argued. His clients had done nothing, and nothing is good. Such a position "may offend our common sense, but it doesn't offend the Constitution," he said.

So the 911 operators had told everyone to stay put. So they promised that help would be there in minutes, rather than three or four hours later. So what? Under the law, a police officer's promise of assistance is meaningless. "Promises do not create a special relationship," Tuthill claimed. "Police officers shouldn't be found constitutionally liable for the decisions they make, even if they later turn out to be mistakes."

School district attorney Stuart Stuller took a similar stance. No special relationship, no creation of danger. The existence of a school security plan that Columbine failed to follow, as reported on 60 Minutes II, didn't create any kind of duty to protect students. Maybe the school screwed up by doing little or nothing with previous complaints about Harris and Klebold, but nothing is good. "There is no evil in being hoodwinked by evil," Stuller argued.

Yet as the day wore on, Judge Babcock seemed to grow impatient with such arguments. Whatever their legal merits, they trifled with logic. "Your defense rests upon inaction," he told Tuthill. "Is the lesson to be learned from these cases that, when confronted with this type of expression, we close our eyes to it -- because by doing nothing, there is no liability?"

Tuthill argued that it was ridiculous to think that the sheriff's commanders had the "luxury" to think through their misguided rescue operation during the first two hours of the siege. Babcock growled back that they surely could have figured out how to reach Sanders by the third hour.

When the assistant county attorney suggested that the failure to investigate the prior bomb reports was due to "allocation of resources," the judge merely scoffed. When Tuthill went on to advance the notion that Dave Sanders wasn't in any kind of "special relationship" with the police because, after all, Sanders wasn't even in direct contact with the 911 operator, Babcock felt compelled to point out that the teacher was critically wounded and unconscious at the time.

Babcock has not yet issued a decision as to which lawsuits, if any, he will dismiss at this point. But there's little question which arguments he found to be more compelling on a common-sense level, if not in legal terms. Two years ago, Jefferson County officials were boasting that they did everything right at Columbine; now they're reduced to arguing that they did nothing so wrong that it amounts to a violation of constitutional rights -- that doing nothing is doing good.

Before Tuthill finished his final remarks, the judge stared at him with a mournful, deeply troubled look on his face.

"Maybe it's just late in the day," Babcock said, "but you're beginning to shock my conscience."